LM-2023-000035 - [2025] EWHC 2168 (Comm)

Miss Campbell submits, by reference to clause 4 of the Mandate, that the full sum fell due on 20 September 2022. Mr Reay submits the full sum fell due in tranches calculated by reference to the date each sum was drawn down or alternatively at the date of each facility by reference to the sums made available under the facility, but with the slight variation that in respect of the September agreement the sum fell due on 3 October 2022, the date of an invoice presented to the Defendant by the Claimant.

Clause 4 provides:

“In consideration of the services to be provided by the Consultant in relation to the Financing, the Company hereby agrees to pay the Consultant in cash, immediately upon commencement of the relevant contract/agreement for each of the Financing, including the initial amount of financing and any subsequent increase or additional amounts of financing, a success fee equal to 1.25% for debt financings to be calculated on the total amount of such Financing.”

In my judgment clause 4, like much of the Mandate as I explain in the main judgment, is ambiguous. The words (in particular those dealing with when the success fee falls due) have no obvious and plain meaning. For the reasons set out at paragraph 28 of the main judgment, I am therefore entitled to “adopt the interpretation which is most consistent with business common sense”. In my judgment the correct interpretation of clause 4 (the interpretation that is most consistent with business common sense) is that the success fee falls due when the relevant facility agreement is entered into.

The second agreement (Footnote: ¹) is described as an “amendment and restatement agreement”. I was not taken to it in submission and have (rightly) not been invited to embark on a further expansive interpretation exercise of it or of clause 4. I note from footnote 4 to the Claimant’s skeleton that the second agreement increases Macquarie’s commitment. I am prepared to treat the agreement as a second facility.

I accept Mr Reay’s point that the sum of €1,542,500 should be treated as falling due on 3 October 2022. The invoice in my view represents a waiver by the Claimant of its strict contractual rights. I accept that the sum of €249,743.93 fell due on 23 May 2023.